Rather than relying on national census figures of the general population for the purposes of the EEA, an employer must compare the economically active portion of the population - both nationally and provincially - against which the composition of the workforce.

Whether numerical targets in a EE plan can be construed as quotas will depend on the rigidity with which they should be pursued, which will depend on the interpretation of the wording of the plan.An EE plan should contain a provision that tells decision makers under what circumstances the pursuit of the targets can yield to other considerations when recommending or making an appointment.

Facts:

This was an application to challenge the validity of the South African Police Service Employment Equity Plan applicable from 1 January 2010 until 31 December 2014. The applicants sought a declarator that the plan was invalid and of no force and effect because it contravenes sections in the EEA, the SAPS Act, PAJA and the Constitution.

By the time final submissions were made in September 2014, the 2010 - 2014 plan had virtually run its course. The relief sought was primarily declaratory. Secondly it was to restrain SAPS from implementing the plan by applying quotas based on demographic representation, or to make appointments based on such criteria. The Labour Court held that while declaratory relief is competent in relation to whether the plan itself met the requirements of the EEA or breached the right to equality, it is not appropriate to make an order relating to the implementation of the policy, especially given the question mark that hangs over the extent to which it was implemented in practice. That is an issue concerning its implementation and will turn on what happened in the case of specific appointments.

The Labour Court found that the EE plan did contravene the EEA.

Extract from the judgment:

Lagrange J:

[49] There seems to be no dispute that the plan clearly satisfies the first two legs of the constitutional test that a remedial measure must meet to qualify under s9(2) of the Constitution, as laid down in Van Heerden. The only issue is whether it also met the third leg, namely whether the plan promoted the achievement of equality. The LAC identified this as the most difficult part of the test, which entails determining if the plan does not impose disproportionate burdens or constitute an abuse of power or impose such substantial and undue harm on those excluded from its benefits, that our long-term constitutional goal would be threatened. In Correctional Services the equity plan under consideration did satisfy the third requirement because of the existence of a deviation policy in the equity plan.

[50] The third leg of the test is intimately bound up with the discussion of a deviation policy, which is dealt with below.

Compliance of the plan with the EEA

The reliance on national demographic targets

[51] It is clear from the provisions of section 42(a)(i) of the EEA and the regulations discussed that the intention of the EEA was that the comparator against which underrepresentation would be measured should be the 'relevant' national and provincial economically active population. The first point to note is that it is perfectly legitimate to have regard to national demographics in terms of the EEA and s 195 of the Constitution, but it is not sufficient to simply rely on national census figures of the general population for the purposes of the EEA. Rather, it is the economically active portion of the population against which the composition of the workforce must be compared. In so far as it is the economically active population that is under consideration, both the national and regional economically active population figures must be considered in terms of s 42(1)(a)(i). Plainly, in relying only on the national population census estimates, SAPS plan did not consider either of these standards in identifying the numerical targets in its plan. At least in these respects, the plan does not comply with the EEA.

[52] In relation to the constitutional injunction that the public service must be broadly representative of the population, that imperative is perfectly consistent with a public service whose provincial racial profile matches that of the population in each province. There is no sense in which national demographic representation is in conflict with regional demographic representation: a nationally representative workforce that is also regionally representative, will fit the varying geographic racial contours of the population much more closely than one which is not.

The use of numeric targets for sub-groups of racially disadvantaged persons

[53] Is it permissible to identify numeric targets for subcategories of the designated group of 'black people'? The relevant definitions are contained in s 1 of the EEA and state:

"'designated groups' means black people, women and people with disabilities;...

'black people' is a generic term which means Africans, Coloureds and Indians;..."

[54] One of the purposes of the EEA is "... to achieve equity in the workplace by ...implementing affirmative action measures to redress the disadvantages in employment experienced by designated groups, in order to ensure their equitable representation in all occupational categories and levels in the workforce." The applicants effectively argue that the designated group of 'black people' is indivisible and whenever targets are set for the advancement of members of that group the targets should relate to the group as a whole and not subcategories thereof. In my view, there is an irreconcilable conflict between this argument and the argument that regional demographics are a necessary and relevant standard when setting numerical targets. Part of the argument in favour of the use of regional demographics is the uneven distribution of subcategories of black people in provincial populations and that a failure to recognise this could result in disproportionately advancing the interests of one category of racially disadvantaged persons at the expense of other categories of black people resulting in a provincial workforce composition that is out of kilter with the racial composition of the province.

[55] In the concurring three-judge minority judgement in Barnard, the following observations were made which are pertinent in this regard:

"[88] In addition, the Act aims to advance several different 'designated groups'. The Act defines 'designated groups' to mean 'black people, women and people with disabilities', and 'black people', in turn, encompasses black Africans as well as persons previously designated coloured and Indian. Employers 'must' implement affirmative action measures that benefit people from all designated groups. So no affirmative action decision is consistent with the purpose of the Act unless it considers the advancement of each of the different categories of persons designated by the Act. A decision that redresses racial disadvantage but grossly aggravates gender disadvantage, for example, might be impermissible, as might a decision that advances only one disadvantaged racial group while limiting the others."
(references omitted).

[56] I believe it accords with the view expressed in the latter part of the quotation above not to interpret the use of the term 'black people' in the EEA as being intended to confine the implementation of affirmative measures to members of that group on the basis that they are part of an homogenous group. Rather, I understand the EEA's description of the term as a 'generic' one was simply intended to emphasise the common distinguishing characteristic of all members of that group, namely that they are members of different racial groups who suffered gross forms of discrimination under apartheid because they were not white, which place them at a historical disadvantage relative to white persons. It is the historic racial character of their disadvantage, which distinguishes them from members of the two other designated groups of disadvantaged persons who are identified by reason of their sex or disability. Thus the term 'black people' is simply a convenient rubric to describe all those whose disadvantage stems from their racial designation under apartheid. It was not intended to avoid recognition of the varied racial composition of that group.

[57] Moreover, a failure to recognize the need for disaggregation can have perverse consequences, already alluded to above. For example, the advancement of a single person falling with the category of black people would enhance the representivity of black persons overall, but depending on which racial subcategory that person came from, might exacerbate the relative under-representation of African, coloured or Indian persons in that level of the workforce. Numeric targets relating to the different racial subdivisions of the group will reduce the likelihood of such an outcome. In the result, I do not think there is merit in attacking the plan on the basis that the use of numerical targets of subcategories of black persons is invalid in terms of the EEA.

The use of numeric targets in the plan

[58] Does the use of numerical targets in the plan amount to the imposition of quotas in breach of section 15(3) of the EEA? Achieving the goal of a public service which is broadly representative of the diverse South African population can hardly be pursued without identifying the specific racial and gender composition of the workforce which would correspond to that ideal, which necessarily entails the numeric expression thereof. Indeed, s 15(3) and s 20(2) of the EEA mandate the use of numerical goals. The key question is whether compliance with the plan necessitates that any promotion or appointment made by the SAPS must demonstrably advance the achievement of the numerical goals identified in the plan.

[59] In Correctional Services the LAC addressed the question of when numerical employment targets used in an employment equity plan could be construed as quotas prohibited by section 15(3):

"Evaluation of appellants' argument

[40] A 'quota' is defined in The Concise Oxford Dictionary, to the extent that it is relevant to this dispute, as 'a fixed number of a group allowed to do something eg. Immigrants entering the country'. [41] Much of the debate before this court turned on the distinction between a quota, which in terms of the EEA, is an impermissible mechanism, and the permissible concept of numerical targets. The key distinguishing factor between these two concepts turns, it appears, on the flexibility of the mechanism. An inflexible set of numbers with which the designated employer is required to comply 'come what may' constitutes a quota and would therefore be in breach of s 15(3) of the EEA. By contrast, a plan based on designated groups filling specified percentages of the workforce, but which allowed for deviations therefrom so that there was no absolute bar to present or continued employment or advancement of people who do not fall within a designated group (s 15(4)) would pass legal muster. Similarly, a plan which provides that the numbers provided for in the plan constitute a goal to be achieved over a defined period would be congruent with the EEA. Of course, even in this case, a target may be designed to achieve a defined goal in a specified period, after which, absent some room for flexibility, the target could become a quota. If the plan is inflexible, then it must be struck down. See in this connection SA Restructuring & Insolvency Practitioners Association v Minister of Justice & Constitutional Development & others (2015 WCC case no 4314/2014)."

[60] The LAC found that the Department of Correctional Services equity plan did provide for deviations from the attainment of numerical goals when making appointments or promotions or promotions in certain circumstances. This was sufficient not only to avoid the conclusion that the Correctional services plan did not establish quotas but was also sufficient for the plan to pass constitutional muster in terms of the third prong of the test set out in Van Heerden for evaluating remedial measures under s 9(2) of the Constitution:

"In terms of the plan, there is a provision for deviations, which can be implemented in the event that a rigid implementation of a plan would compromise service delivery or where it would not be possible to appoint suitably qualified people from designated groups to the relevant occupational categories and levels in the workforce."
And

"As indicated, we do not consider that a deviation plan that focuses exclusively on organisational need and the consequent assessment of skills, experience and the ability of an individual applicant to fulfil these defined needs renders such a plan unconstitutional."

[61] It seems also that the LAC also reached its finding that the deviation policy in the plan referred to above was sufficient to pass constitutional muster, mainly on account of the provision for deviations, but also because of evidence given during the trial which the court alluded to. Firstly, the court regarded as noteworthy the evidence of the Department of Correctional Services' Regional Head: Corporate Services Western Cape to the effect that the characteristics of an individual applicant could play a role in deciding whether to depart from the plan for operational reasons. Secondly, the court observed that the fact that there was uncontested evidence that the third respondent had approved 13 deviations in the Western Cape during the period 2010 to 2013 tended to indicate that there was not an absolute bar to promotion or appointment and that the plan had not been inflexibly adhered to. Lastly, the court took cognizance of the fact that the individuals who claimed to have been unfairly discriminated against in terms of the policy did not base their case on the department's refusal to consider a deviation from the policy but on the policy itself.

[62] In this instance, unlike in the Correctional Services matter there is no provision in the SAPS plan setting out the circumstances in which a deviation from the plan would be acceptable. Any member of SAPS management dealing with appointments or promotions would find no guidance in the plan as to when, or on what basis, it would be acceptable to make recommendations or decisions on employment or promotion that did not advance the numerical representation goals of the plan, and which also would not negatively affect their own performance assessment or possibly result in disciplinary action being taken against them. The National Commissioner claims in her answering affidavit that the plan does not make race or gender decisive considerations in appointments and promotions, but "... simply introduces them among the many factors to be taken into account when making employment decisions." However, none of the provisions of the plan indicate when any of those other factors might legitimately permit an appointment or promotion to be made which does not advance the pursuit of the numerical goals. On the wording of the plan itself, it does not cater for exceptions.

[63] In Correctional Services the LAC also mentioned, though it does not seem to have been raised in the case before it,that a plan in which the numeric targets are only a goal to achieve over a period of time would also be congruent with the EEA. Does that mean, as in this case, where the targets change from year to year during the five year duration of the plan that, the various annual numeric targets do not amount to quotas? Any equity plan must have a time frame or time frames for achieving numeric objectives. The issue whether those numerical targets can be construed as quotas will always depend on the rigidity with which they should be pursued, which will depend on the interpretation of the wording of the plan. In the case of the SAPS plan, there is nothing in the wording which suggests that the stipulated 'realistic' targets were merely figures that SAPS was aiming to achieve rather than fixed objectives which could result in poor performance assessments or even disciplinary sanctions if not met.

[64] Labelling a target 'realistic' does not in and of itself mean it is flexible when it comes to making a decision. What is lacking in the plan is a provision that tells decision makers under what circumstances the pursuit of the targets can yield to other considerations when recommending or making an appointment.

[65] SAPS's answer that the plan must be looked at in the context of other instruments governing appointments is a poor one. The fact that other regulatory provisions might provide for a more nuanced approach to appointments and promotions does not detract from the rigidity of the conception of the plan itself as embodied in its provisions. If SAPS did not intend the numerical goals in the plan to carry overriding importance in employment and promotion decisions in all instances, then the plan itself ought to have said that either by way of express provisions explaining when non-adherence to the attainment of the numerical targets would be considered legitimate, or by express reference to other statutory instruments that provide for this. In the absence thereof, it is hard to escape the conclusion that the plan as such did not envisage a flexible approach being adopted in the pursuit of its numerical targets. In Correctional Services the LAC found that the numerical targets in that plan were not quotas because of the deviation provision it contained. The same cannot be said of the SAPS plan, which contains no equivalent provisions. For the same reason the absence of any mechanism which might ameliorate the impact of applying the targets rigidly on members whose race or gender would present an insuperable obstacle to their promotion means that the plan as such does not satisfy the third leg of the test for remedial measures aimed at achieving substantive equality.

[66] However, another defence advanced by SAPS is that the factual position belies Solidarity's claim that the plan is rigid and inflexible or that it erects absolute barriers to advancement of members of groups that are over-represented in a staff category. Thus, SAPS points out that since April 2000 to March 2012, 3549 white males and 5173 white females were promoted, which would not be possible if race and gender considerations were paramount. Solidarity did not take issue with these figures. It also did not argue that during the period from 2010 to 2012, which fell during the period of the 2010-2014 plan, the incidence of such appointments was not consistent with the pattern of such appointments before the plan was implemented.

[67] An allied contention of SAPS is that the issue of whether race and gender are ever decisive is not a matter that can be answered in the abstract but only with reference to actual employment decisions. The applicant retorts that SAPS ought to have taken the court into its confidence by stating how many candidates for promotion or appointment had been refused appointment solely only on the basis of that they were not appointed because they did not satisfy the racial profile required by the numerical target, and how many posts had not been filled because no suitable candidate satisfying the numerical goals could be found. However, in so far as the actual outcomes of appointment or promotion, decisions are decisive in this application, it is the applicant that should have sought to adduce such evidence in support of its claim that the plan raised insuperable barriers to the appointment of qualified candidates who would have been appointed but for their race or sex.

[68] In this instance, though I am satisfied that, in conception, the numeric targets amount to quotas, the factual position does show the plan was not followed to the letter and that in practice, other factors did play a role in determining appointments. In short, the plan itself was defective as a remedial measure in terms of s 9(2) of the constitution and did not satisfy all the requirements of the EEA, but was flexibly implemented despite the absence of provision for flexibility in the plan itself.

Compliance with s 27 of SAPS Act.

[69] It also follows that because the plan did not comply with s 9(2) of the Constitution, it could not by itself constitute a remedial measure designed to achieve the objects of s 8(3)(a) of the interim constitution and therefore was not a remedial measure which SAPS could rely on as a justification for departing from any of the precepts in the SAPS Act governing the filling of posts. However, since the wording of s 27(2) speaks of SAPS "compliance" with such a measure and in view of the conclusion, on the limited evidence available, that SAPS did not in fact implement the plan properly, it would be absurd to conclude that because the plan was defective SAPS had acted in breach of s 27(2) of the SAPS Act. As SAPS had not complied with the defective plan in practice, it cannot be said to have acted in accordance with a plan which did not satisfy the requirements of achieving the objects contemplated in sections 8 (3) (a) and 212 (2) of the Constitution

Remedy

[70] By the time final submissions were made in September 2014, the 2010 - 2014 plan had virtually run its course. The relief sought was primarily declaratory. Secondly it was to restrain SAPS from implementing the plan by applying quotas based on demographic representation, or to make appointments based on such criteria. While declaratory relief would be competent in relation to whether the plan itself met the requirements of the EEA or breached the right to equality, it is not appropriate to make an order relating to the implementation of the policy, especially given the question mark that hangs over the extent to which it was implemented in practice. That is an issue concerning its implementation and will turn on what happened in the case of specific appointments.

[71] The matter is obviously an important one of principle for both parties and they have an ongoing relationship which would make an award of costs inappropriate in the circumstances.